As the Texas legislature convenes a special session, among the more questionable proposals to receive such urgent treatment is a renewed push to regulate how social media companies moderate user content. While we share the concerns of many legislators about removal of conservative content from social media networks, SB 5 contains the same fundamental problems we warned the Texas legislature about in comments we directed to state lawmakers back in May when it considered SB 12.
Fundamentally, attempting to address “censorship” by social media platforms based on the “viewpoint” of the user is a direct violation of the First Amendment, which protects the right of any business to determine what content they want to host on their platform. This should be even more abundantly clear in the wake of the injunction a judge placed against Florida’s new law against social media bias, affirming a legal challenge filed by NetChoice and CCIA. While Florida’s SB 7072 is different than Texas’ proposal in some respects, its core flaw is the same: social media platforms are not governmental actors and thus any law attempting to limit the expression they allow (or don’t allow) on their platforms is subject to strict scrutiny under the First Amendment.
Even if mandating that content moderation on Facebook or Twitter must be neutral with respect to “viewpoint” were constitutional, it would likely not produce a result that most supporters of this bill would like. Outside of the illegal content that online platforms are already legally obliged to remove lies a large universe of grey-area content that could be considered “lawful but awful”; such as recruitment to dangerous terrorist and extremist causes, bullying and harassment of kids, and so on.
The boundaries of what fits into this kind of content are always subjective, and the problem with attempting to restrict content moderation based on “viewpoint” is that it would preserve all of this unpleasant content too. And since individual users and companies, not just the state Attorney General, can file complaints against these platforms under SB 5, it is guaranteed that there would be plenty of suits filed against the removal of such offensive content - from racist content to pornography. As Judge Hinkle observed in handing down the injunction in Florida, “In the absence [of] curation, a social-media site would soon become unacceptable—and indeed useless—to most users.”
In addition, SB 5 defines what constitutes “censorship” very broadly, as any action that would “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” This is so vague as to potentially imperil any prioritization of content, monetized or not. As TechDirt’s Mike Masnick observes, “whoever is ranked below the top spot has been "de-boosted" and not provided "equal access or visibility."
It’s understandable that there is a desire to push back against the seemingly arrogant and capricious way in which the large social media giants decide what “disinformation” or “extremist” speech they want to remove from their sites. But bias in moderation is not something that is easily legislated away, and certainly mandating viewpoint neutrality is not only likely unconstitutional, but also likely to produce an internet experience that no one will enjoy. As it stands, SB 5, if enacted, would most likely be struck down in courts on constitutional grounds, costing Texas taxpayers a great deal of money along the way.